Zomojo Pty Ltd v Hurd (No 4) - [2014] FCA 441

FEDERAL COURT OF AUSTRALIA
Zomojo Pty Ltd v Hurd (No 4) [2014] FCA 441

Citation: Zomojo Pty Ltd v Hurd (No 4) [2014] FCA 441

Parties: ZOMOJO PTY LTD (ACN 114 604 269) v MATTHEW HURD, ZEPTONICS PTY LTD (ACN 141 647 716), CROSSWISE PTY LTD (ACN 140 717 317), MD HAMMER PTY LTD (ACN 149 869 189), ZEPTO MARKETS PTY LTD (ACN 150 529 301), ZEPTO FABRICS PTY LTD (ACN 156 138 000), ZEPTOIP PTY LTD (ACN 156 133 087) and TRADEMACH PTY LTD (ACN 155 683 864); MATTHEW HURD, JOLENE (TAS) PTY LTD and HURD FAMILY SUPERANNUATION FUND; ZOMOJO PTY LTD (ACN 114 604 269)

File number: VID 1478 of 2011

Judge: JESSUP J

Date of judgment: 6 May 2014

Corrigendum: 27 May 2014

Catchwords: DAMAGES – quantum – liability determined by reference to time spent by the first respondent working on other business – liability calculated as a fraction of the first respondent’s annual remuneration – first respondent liable to pay the applicant’s recruitment costs of replacing employees who left the applicant to join the first respondent’s business

Legislation: Corporations Act 2001 (Cth) s 471B

Cases cited: Giedo van der Garde BV v Force India Formula One Team Ltd [2010] EWHC 2373
Miles v Wakefield Metropolitan District Council
[1987] AC 539
National Coal Board v Galley [1958] 1 WLR 16
The Commonwealth v Amman Aviation Pty Ltd
(1991) 174 CLR 64
Zomojo Pty Ltd v Hurd (No 2) [2012] FCA 1458

Date of hearing: 25-26 March 2014

Date of last submissions: 8 April 2014

Place: Melbourne

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 53

Counsel for the Applicant: M Collins SC with B Carew

Solicitor for the Applicant: Corrs Chambers Westgarth

Counsel for the First Respondent: D Parish

Counsel for the Second, Third, Fourth, Fifth, Sixth, Seventh and Eighth Respondents: G Scott

Solicitor for the Second, Third, Fourth, Fifth, Sixth, Seventh and Eighth Respondents: Hall & Wilcox

FEDERAL COURT OF AUSTRALIA
Zomojo Pty Ltd v Hurd (No 4) [2014] FCA 441
CORRIGENDUM

In paragraph 21 of the Reasons for Judgment published 6 May 2014, the last bullet point should read:
·The steps taken by Mr Hurd in the development of the Crosswise ATS, as set out in G[267] (G[270]) and G[268].

I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Jessup.
Associate:
Dated: 27 May 2014

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY

GENERAL DIVISION

VID 1478 of 2011

BETWEEN:
ZOMOJO PTY LTD (ACN 114 604 269)
Applicant

MATTHEW HURD
First Cross-Claimant

JOLENE (TAS) PTY LTD
Second Cross-Claimant

HURD FAMILY SUPERANNUATION FUND
Third Cross-Claimant

AND:
MATTHEW HURD
First Respondent

ZEPTONICS PTY LTD (ACN 141 647 716)
Second Respondent

CROSSWISE PTY LTD (ACN 140 717 317)
Third Respondent

MD HAMMER PTY LTD (ACN 149 869 189)
Fourth Respondent

ZEPTO MARKETS PTY LTD (ACN 150 529 301)
Fifth Respondent

ZEPTO FABRICS PTY LTD (ACN 156 138 000)
Sixth Respondent

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Keep reading for free

Create a free CaseChat account to read Zomojo Pty Ltd v Hurd (No 4) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2014] FCA 441
Decision Date

CaseChat Overview and Summary

Zomojo Pty Ltd brought an action against Matthew Hurd and a number of companies in which he was involved. The first part of the action was concerned with the liability of the defendants to the applicant. This was decided by Gordon J, and is reported in Zomojo Pty Ltd v Hurd (No 2) [2012] FCA 1458. The second part of the action is concerned with the assessment of damages which the applicant is entitled to recover from Mr Hurd, as well as the disposition of the claims made in the applicant's interlocutory application dated 13 February 2014. The applicant's claim for damages against Mr Hurd comprises two parts. The first is that the applicant is entitled to recover the value of the time which Mr Hurd devoted to his other business interests while he was still employed by the applicant. This claim arises under cl 3 of Mr Hurd's service agreement. The second is that the applicant is entitled to recover its recruitment agency costs in replacing staff to whom Mr Hurd, in breach of that agreement, offered other employment. The applicant's interlocutory application sought leave to proceed against other defendants, and sought further discovery, declarations in relation to patents, declarations of contempt, and orders in relation to costs. The court granted leave to proceed against other defendants, and leave to apply for declarations in relation to patents. The court also made those declarations.

Orders